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Click here for the full text of this decision FACTS:A jury found the appellant, Leroy Lumpkin, guilty of possession of cocaine, in an amount more than one gram but less than four grams, and of tampering with evidence. Having found true enhancement allegations of prior convictions for possession and delivery of a controlled substance, the jury assessed punishment for each offense at 37 years in prison. On Jan. 22, 2002, a Harris County Sheriff’s deputy on the narcotics task force stopped a car traveling eastbound on Interstate 10 because the car’s taillight was not operating properly. As the deputy approached the car, he noticed that the driver, appellant, was “ingesting some white substance and then was consuming it down with a cup of what [he] thought at the time was liquid.” When he reached the car, the deputy noticed pieces of the white substance around appellant’s mouth, on appellant’s shirt, and on the car’s floorboard. The deputy also noticed that what he had earlier thought was a “liquid” was a cup of water and cigarette butts. The deputy then put appellant in the back of the patrol car while he field-tested some of the white pieces. The test results were positive for cocaine. The deputy returned to the patrol car to find that appellant “couldn’t breathe” and, understanding this to be a sign of cocaine ingestion, called an ambulance to transport appellant to a hospital. After appellant arrived at the hospital, the deputy recovered cocaine from appellant’s vomit, but did not extract additional “rocks” that were recovered from appellant’s stomach, which had been pumped, because these rocks were diluted with stomach acids. A chemist in the Houston Police Department laboratory later confirmed that the recovered white substance was cocaine with a cumulative weight of 1.8 grams. HOLDING:The court reverses the judgment of the trial court and renders judgment acquitting appellant of the offense of tampering with evidence in trial court cause number 900157. The court affirms the judgment of the trial court convicting appellant of possession of cocaine in trial court cause number 900156. The appellant contends that the evidence was legally insufficient to support his conviction for tampering with the evidence of cocaine. Construing “pending” as meaning “about to take place, impending” places the Texas statute in harmony with other jurisdictions using the Model Penal Code terminology “believing that an official proceeding [or investigation] is pending or may be [or is about to be or is likely to be] instituted.” Model Penal Code �241.7. Accordingly, the court holds that the term “pending” in the Texas tampering-with-evidence statute, Texas Penal Code �37.09(a)(1), means “impending, or about to take place.” Therefore, in cases in which the defendant alters, destroys or conceals evidence to avoid an investigation that the defendant believes is about to take place because he is in possession of contraband, and in which the state prosecutes under the theory that the defendant knew that an investigation regarding the contraband was pending, the evidence should be found sufficient regarding the element of knowledge. The court disagrees with the decision in Pannell v. State, 7 S.W.3d 222 (Tex. App.  Dallas 1999, pet. ref’d), which did not address the meaning of the terms “pending” and “in progress.” Here, however, the state alleged only that the appellant knew that an investigation was “in progress,” not that one was “pending.” The investigation that was in progress was a traffic stop. The appellant had already swallowed the cocaine before the investigation that was in progress became one concerning narcotics. The state elected to allege the wrong culpable mental state with which the tampering-with-evidence offense was committed. The court holds the evidence legally insufficient to support the state’s allegation, which was tracked in the jury charge. Having sustained appellant’s complaint concerning insufficiency of the evidence to prove knowledge that an investigation was in progress, the court declines to address appellant’s alternative argument that the evidence was insufficient to prove that he altered the evidence. The appellant contends that his trial counsel was ineffective during the punishment phase by presenting a “totally inadequate” closing argument, by failing to present available character evidence about the “positive aspects” of appellant’s life, and by discouraging appellant from testifying. The appellant has not shown that his trial counsel provided ineffective assistance or that, but for ineffective representation by counsel, the result of the proceedings would have been different. OPINION:Taft, J.; Taft, Jennings and Hanks, JJ.

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